9911796707
TMI Blog2009 (1) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed refund of duty on the ground that the appellants have not conclusively proved that the burden of duty has not been passed on and thereby not discharged the burden of unjust enrichment. 2. Heard both the sides and perused the records. 3. The brief facts that arise for consideration in the present case are that the appellants imported two consignments of Star Aniseed at New Custom House, Ballard Estate, Mumbai and filed Bills of entry No. 208424 dated 26-9-2001 and No. 221310 dated 20-11-2001. The appellants declared the invoice value of US $3600 PMT and US $2800 PMT for clearance of the said product. However, the declared value was not accepted by the Department and the same was enhanced to US $6000 PMT for the purpose of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aggrieved with the said order-in-original, the Department filed an appeal before the Commissioner of Customs (Appeals). The Commissioner (Appeals) remanded the matter back to the adjudicating authority for de novo consideration vide Order-in-Appeal dated 6-11-2006. 3.5 In the remand proceedings, the Deputy Commissioner, vide Order dated 19-12-2006, ordered the amount of refund to be credited to the Consumer Welfare Fund on the ground that (i) the Auditors Report and Balance Sheet submitted by the appellants shows Rs. 18,41,879/- as recoverable from Customs whereas the amount claimed by them in the refund claim is Rs. 9,90,089/- and (ii) The sale bills/cash memo submitted by the appellants reflect a composite price and hence, it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memo sales. They stated they have produced audited Books of accounts including the Profit and Loss Account and the Balance Sheets for the year ending 2001-2002, 2002-2003 and 2003-2004 showing the said amount of refund as Customs duty recoverable from the Department; a certificate showing the landed cost of the said product; the chart evidencing the stock position and details of sale of the said product during 2001-2002 and 2002-2003 and a certificate from the Chartered Accountant dated 12-1-2005 stating that the amount of Rs. 18,41,879/- is shown as customs duty recoverable from the Department in the balance sheet of the appellants. 5. The appellants have pointed out that the product in question being an agricultural product, the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced by the assessee in the form of the audited books of accounts and balance sheet showing that amount of refund as recoverable from the Department, which is duly supported by a certificate issued by the chartered accountant and in absence of any contrary evidence produced by the Revenue, the claim for refund would not be hit by the bar of unjust enrichment. This view has been consistently been taken by the Tribunal in the following cases : (a) Brindavan Tex Processors Pvt. Ltd. v. CCE - 2006 (196) E.L.T. 61 = 2007 (8) S.T.R. 111 (b) CC v. Maruti Udyog Ltd. - 2003 (155) E.L.T. 523 (c) Hero Honda Motors Ltd. v. CC - 2000 (126) E.L.T. 1014 (d) Ashiqui Exports (P) Ltd. v. CC - 2008 (221) E.L.T. 67 (e) IPCA Labor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted to take a different stand in identical set of facts in the assessee s own case. If this were to be permitted, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary. This has been clearly laid down by the Hon ble Supreme Court in the case of Birla Corporation Limited - 2005 (186) E.L.T. 266 (S.C.). Similar view has been taken by the Apex Court in the case of CCE v. Amar Bitumen Allied Products Limited - 2006 (202) E.L.T. 213 (S.C.) and Jayswal Neco Limited v. CCE - 2006 (195) E.L.T. 142 (S.C.) = 2007 (8) S.T.R. 305 (S.C.). 10. In view of the above, I hold that impugned order passed by the Commissioner so far as it upholds the Order-in-Original dated 19-12-2006 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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